GPSolo Magazine - March 2006

Domestic Relations LawIn Sickness and in Health: Representing a Spouse in a Sexual Transmission Case

By Cary B. Cheifetz

The modern abolition of interspousal immunity, which once barred one spouse from suing the other, has encouraged aggrieved spouses to litigate all complaints in a divorce case. Thus, where one party has inflicted a sexually transmitted disease on the other, either intentionally or negligently, monetary damages may be sought. Family lawyers must be sensitive to the issues that arise in seeking this relief. Often the recipient of a sexually transmitted disease feels physically and emotionally violated. The burden of getting medical attention is exacerbated by pain and suffering. Following are practice pointers to help lawyers navigate the minefields of a sexual transmission case.

Openly address sexual transmission issues in the initial interview. Within the first hour of the initial meeting with the client, establish the rapport necessary for the client to feel comfortable disclosing intimate details of his or her life. In today’s world, where divorce often is the most likely end of a marriage and where people secretly seek outlets outside of marriage to express their sexual identities, an early and frank discussion with the client is essential.

Advise your client in writing to undergo testing to determine whether he or she has been exposed to or is carrying a sexually transmitted disease. Explain that even when a client acknowledges a failed marriage but believes that a spouse has been faithful, testing can assure peace of mind, particularly if the spouses have not been intimate for a significant period.

By putting the advice in writing, counsel memorializes the communication. Let us not forget that these actions are in the nature of a personal injury action and should be treated similarly. A client seeking the advice of a divorce lawyer may not be ready to proceed. He or she must be cognizant of the statute of limitations. In many jurisdictions, a claim for personal injury must be brought within a short period of time, often one or two years. Persons are charged with knowledge of a cause of action upon actual knowledge or at the time they reasonably should have known. Thus, an intervening attempt at reconciliation or delay in filing may irreparably harm the aggrieved client’s cause of action.

Consider dividing the labor of the case with co-counsel skilled in tort law. No matter how you slice and dice it, the cause of action for recovery in a sexually transmitted disease case is one of personal injury and recovery for compensatory and perhaps punitive damages. The case entails understanding a totally new body of case law. In a unified family court system, such cases may entail a new body of procedural law. Although most cases will settle before trial, just as in divorce cases, the matrimonial lawyer will be asked to evaluate the potential recovery for settlement. Though most competent matrimonial lawyers can project an alimony or child support claim within 10 percent, and probably evaluate the range of value for closely held businesses and professional practices, putting a number on personal injury damages is a horse of a different color. It is even more difficult when the family lawyer, most of whose divorce cases proceed by bench trial, is asked to consider what a jury will award.

Bench trials are very different from jury trials. Unless the lawyer has an active personal injury practice or significant jury trial experience, these judgment calls will be difficult without guidance. A co-counsel arrangement that divides the labor of the case can make representation cost-effective and produce a better result for the client. If labor isn’t being divided, make sure that appropriate records are kept concerning counsel fees so that work performed on each claim is not blurred. This is important because traditional marital claims often are compensated at hourly rates, whereas the injury claim may be compensated at a contingent fee rate.

Before filing the action, consider the source of recovery. Before taking on the case, evaluate the extent to which the aggrieved can recover damages awarded. In most cases, no insurance coverage will secure the award because most homeowner’s policies disclaim this in underwriting. Thus, the plaintiff will be left to secure recovery from the distribution of property left to the other spouse or income available after spousal and child support are paid. In today’s economic climate of leverage, in which many clients are equitably distributing debts of the marriage, resources available after the divorce may not justify moving forward with the claim. Where there is justification but not unlimited assets, the lawyer must help the client set realistic goals that take these issues into account.

Memorialize the client’s instruc-tions in writing. Advancing the claim is the client’s choice, not the lawyer’s decision. However, any claim that is abandoned, either for practical reasons or otherwise, should be memorialized so that later no issue arises regarding client authority. Many a claim is not worth pursuing for pure economic reasons and should thus be clearly memorialized.

Evaluate whether you can prove causation. Despite your client’s having a sexually transmitted disease, you may not be able to prove that the other spouse caused it. The most difficult proof in the case is causation. Investigate the other spouse’s medical records to determine if treatment has occurred. Blood work or other tests, if not too invasive, will help to establish causation. However, the defense of no causation may be raised, particularly when spousal intimacy has ended and each spouse has found sexual comfort with other people. Could the client have received the transmission from someone other than the spouse? We see this defense in the context of paternity cases. In a case where the sexual activities of your client become the focus of the other party’s defense strategy, think long and hard before bringing the action if this is a potential area of concern that will affect the bona fides of the claim.

These cases can turn a simple divorce action into a high-conflict matter. In counseling either party, let the client know that ultimately the case will be resolved by settlement or trial. Decisions will need to be made about funding the litigation, which can be terribly costly given the need for expert opinions. Early in the case, evaluate the issues and place a number on the claim. Insurance carriers do this through utilization of reserve funds. Here, early settlement may be the best option and a viable alternative to discovery. It retains the dignity and privacy of both parties where that can be accomplished. However, in doing so, it is important to draft appropriate waivers and releases to finalize the matter.

By properly interviewing the client and investigating the bona fides of the claim, a lawyer will walk safely through the minefields of the personal injury side of matrimonial litigation. As in any litigation, know the strengths and weaknesses of your elements of proof, size up the case, and be realistic about recovery. Above all, don’t oversell the client’s expectations.

Cary B. Cheifetz is a partner in the law firm of Ceconi & Cheifetz LLC in Summit, New Jersey. He can be reached atnjesquire@optonline.net.

For More Information about About the Section of Family Law

- This article is an abridged and edited version of one that originally appeared on page 24 of Family Advocate, Spring 2005 (24:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.